The daily herald. [volume] (Honolulu, Hawaiian Islands) 1886-1887, 1887-04-15
An Important Decision.

Z. w. Ashford vs.. w. ). Luce.
Ashford & Ashford for plaintiff, w. A.
Whiting for defendant The Hon. A.
+: Judd, Chief Justice and Chancellor
Of the Kingdom, filed his decision yes
terday in the above case. The docu.
ment reads as follows:
This is a bill in equity to restrain by
injunction the erection by defendant Of
a building, which the plaintiff alleges
will shut out the light and air from a
window in certain premises occupied
by the plaintiff as a law office. The
bill alleges that the window in the
premises in question is an ancient light,
and it has existed unrestricted for the
space of forty years
The defendant demurs to the bill,
and submits that no easement to light
and air can be acquired by prescription
in this kingdom. This question is
thus raised for the first time in this
country. BY the law Of England such
an easement can be acquired. find
that in the United States the Courts of
the several States have declined to
adopt this principle, with the exception
OF Maryland. A recent case (IS74) in
Massachusetts,, Keats VS.. Hugo, IIs
Mass, 2o4, reviews all the American
cases thoroughly The Court per
Gray, c. ]. (now on the Supreme Bench
Of the United States) say "By nature,
air and light do not flow in definite
channels, but are universally dihTused
The supposed necessity for their pass
Eage in a particular line or direction to
any lot Of land is created not by the
relative situation Of that lot to the sur.
Grounding lands, but by the manner in
which that lot has been built upon.
The actual enjoyment of the air and
light by the owner of the house is upon
his own land only. He makes no tan
gible or visible use of the adjoining
ands, nor indeed any use of them
which can be made the. subject Of an
action by their owner, or which in any
way interferes with the latters enjoy
ment of the light and air upon his own
lands, or with any use Of those lands
in their existing condition. In short,
the owner of the adjoining lands has
submitted to nothing which actually
encroached upon his rights, and cannot
therefore be presumed to have assented
to any such encroachment. The use
and enjoyment of the adjoining lands
are certainly no more subordinate to
those of the house where both are
owned by one man than where the
owners are different The reasons
upon which it has been held that nc
grant of a right to air and light can be
implied from any length Of continuous
enjoyment are equally strong against
implying a grant of such right from
the mere conveyance OF a house with
windows overhanglng the land of the
grantor To imply the grant of such a
right in either case, without express
words, would greatly embaTass the inn
proyement of estates, and by reason Of
r the very indefinite character of the
right asserted, promote litigation. The
simplest rule, and that best suited to &
country like ours, in which changes are
continually taking place in the owner
, ship and the use of the lands, is tina
, no right of this character can be &C
[ quired without express grant of an in
terest in, or covenant relating to thu
lands over which the right is claimed.
e l am free to adopt either tn,
e principles of the English or of tn,
G American Courts. The circumstance
y of our island towns, being new ant
growing communities with constan
changes of ownership of land and fire.
quent changes in buildings an,
C erections, are more analogous to tn
Il communities of the United States, AM
e the reasoning which has induced tn
Courts in America to reject the Englis
= view, applies with equal force here.
i / am of the opinion that an ease
d ment in light and air cannot be OF
is tanned in this country by prescription
and therefore sustain the demurrer